David Cameron and his Conservative-led coalition
government launched the Red Tape Challenge in April 2011. The government said
it was “challenging the public to help cut unnecessary
regulations.” The real aim, it seems, was to confirm the Tory
reputation as being good for business, and the idea the economy could be jolted
back into life through a few cuts here and a restructure or two there. It also
reinforced the story that regulation, or bureaucracy, was the scourge of
British life.

The Red Tape Challenge included yet another house
building review (see part one of this series for the history of recent reviews).

Again, the doors to the house building lobby
remained open. The review was, according to the government, set up “to
identify...unnecessary regulatory
barriers to growth and associated costs to the house building sector,
while ensuring necessary protections are maintained...[it] will examine any
aspects of regulation or the way it is implemented which could be made simpler,
more cost-effective, efficient, proportionate, or consistent.”

The Wildlife and Countryside Link, which represents
environment charities, observed: “A review
of biodiversity regulations was also undertaken, to which 84
percent of responses were in support of keeping or strengthening
existing regulations and only two percent were in support of removing or
weakening them.” (Emphasis added).

George Osborne, then chancellor, personally took up
the cause of the house builders. In doing so, he came out strongly against our
dozy great crested newt and its EU protectors. He demanded a review of the
implementation of the birds and habitats directives, and its impact on business
and developers, in November that year. Osborne made headlines when he seemed to
pre-empt the results of the review by announcing that these wildlife
protections were "placing
ridiculous costs on British businesses".

The review was led by Osborne’s cabinet colleague,
Caroline Spelman, in her role as environment secretary. But it did not all go his
way. Spelman said: "The review has shown the directives
have been working well to provide the vital protection
nature needs”, though she added “there are cases where problems arise and
delays occur, which is not good for business, the environment or local
communities."

The 54-page report established that Natural England
- responsible for implementing the EU directives - in fact objected to fewer
than 0.5 percent of planning applications. Spelman admitted: "There are a
handful of cases where we have had problems." The Department for
Environment, Food and Rural Affairs (Defra) nonetheless presented 28 new
recommendations, promised to establish three new specialist units and published
another tranche of "new streamlined guidance".

Martin Harper, conservation director at the Royal
Society for the Protection of Birds (RSPB), said at the time: "The
government's own review has shown that the chancellor's comments were misleading
rhetoric, with no factual basis. We remain determined to persuade the
government that there is no contradiction between environmental protection and
economic growth." Carol Day, a lawyer at the international conservation
charity WWF, was even more blunt: "Osborne's claims were completely
wrong.”

The government would later claim that the Spelman
review delivered more than £1 million in savings to housing developers over
three years, by simplifying the planning process. “Savings
have been made chiefly via the introduction of an ‘annexed licence’ system for works
affecting bats, great crested newts and dormice –
which has reduced the number of applications and subsequent rejections and
reapplications,” Natural England boasted in its press release.

EU regulations are not immutable, as the newt has learned

Fast forward three years to 2015 and it was the European Union’s turn to
review the birds and habitats directives, again taking on the complaints of
house builders in the UK and elsewhere. The European Commission announced a
review of nature conservation laws in
order to assess whether they remained “fit for purpose”. Over 550,000 EU
citizens responded to the commission’s public consultation on the issue,
including 100,000 from the UK - the largest ever response to an EU public
consultation.

The Wildlife and Countryside Link was among the
British respondents. It argued that the directives were too often presented as
a barrier to growth when the reality was “[t]he network of sites protected
under the directives represent the foundations of UK nature conservation and a
core component of the UK’s natural capital, supporting the delivery of a wide
range of ecosystem services essential for human health and well-being.” It
concluded: “Without the directives, nature in the UK would be in a far worse
state.”

That same year, Natural England announced a
fundamental shift in the way it would interpret the EU regulations and enforce
protections of the great crested newt. This was in response to lobbying by the
house building sector, but also because new technology had become available.

DNA mapping would be used to identify larger
populations of great crested newts within local authority areas, and the
directives would be used to protect these locations. House builders who
discovered a couple of newts would no longer have to stop in their tracks. The
few would be sacrificed for the greater good. A trial was established in
Woking, and even before it had concluded, the policy was being adopted in other
parts of the UK.

The Telegraph reported gleefully:
“[G]reat crested newts will no longer be able derail new housing… developers
will no longer be required to move individual newts, as long as councils
protect the biggest populations and best habitat.” The newspaper also reported
that Natural England had, in any case, only issued about 1,000 licences to
disturb great crested newts so far in 2015.

It’s not the rules
that are the problem – but how they’re implemented

Three months after Natural England announced the
Woking pilot, the commission published the conclusions of its review of the
nature directives, which had found that it was the implementation of the
directives, not the rules themselves, that needed improvement.

The conclusions were adopted by the European
Parliament’s Environment Council in December 2015, followed by the full
Parliament two months later. Rory Stewart, a junior Defra minister, reported
back to Parliament, telling MPs that “the UK raised concerns over the
implementation of the nature directives” but then admitted that this was best
resolved “through looking at much better approaches to implementation”. This
was in effect admitting that the EU and its directives were all in good order.
But the British government, through its agencies, was failing in terms of
implementation.

In the wake of the EU’s Environment Council
decision, DEFRA set about trying to get an agreement between the various
interest groups. “Ministers are looking to set in place a Memorandum of
Agreement between government, developer organisation and environmental bodies
to take forward a programme of work to agree improved implementation
arrangements,” the House Builders Federation(HBF) informed its members. “The
HBF attaches importance to this work being expedited.”

The whole charade moved back onto UK shores. Civil
servants from Defra, the then Department for Communities and
Local Government (DCLG), and Natural England met with charities and with
developers and their representatives, including of course, the HBF.

The different interest groups sat down together,
listened diligently, and began to reach a consensus, a solution to how to
implement the directives. The house builders were mindful of the need to
protect the great crested newt, the environment charities understood the
pressing need for new housing.

The HBF continued to express concern about how
the regulations were being implemented. John Slaughter, director of
external affairs, published Cutting Red Tape – Sector Review of House
Building. The report stated: “The implementation of the Habitats and
Birds Directives can be problematic for house building.”

Referring to an issue in Thames Basin Heaths, it
added: “[T]here should be a duty on the regulatory bodies and local
authorities to plan proactively for strategic solutions that can
successfully meet both conservation and development requirements...There have
been other examples of the implementation of the directives resulting in
adverse impacts on home building.”

The emphasis is added. But the message remains
clear. It was the implementation of the rules by the British government and its
agencies - agencies answerable to the Conservative cabinet, including at that
time George Osborne - that was the problem for home builders. It was not
the EU and its directives.

The disparate groups reached the point where they
were happy to all agree to the memorandum of agreement. This was due to be
signed on 24 June 2016. Indeed, 2016 was the year house building in Britain had
returned to good health, great crested newt or no.

“A generally more attractive environment for house
building investment, improved economic conditions and political action to
tackle blockages and support first-time buyers has contributed to unprecedented
increases in housing supply which has risen by more than 50 percent in just
three years,” the HBF rejoiced. But then...

Thrown under the great red Brexit bus?

Brexit rebooted the whole process – again. The
whole conversation around great crested newts, house building, planning,
regulations and European directives became subsumed in the great Brexit debate.
The June 2016 memorandum of understanding was abandoned, or at least put on
hold. Some involved in the process expressed frustration that “the whole
delicate process was thrown under the big red Brexit bus”.

Take back control. Westminster, not Brussels.
Controlling our borders. No more immigration. No more busy body bureaucrats. No
more red tape. The concordat between housing developers and conservationists
was shelved by government. A letter from the stakeholders, from the HBF to the
RSPB, was sent asking that ministers in fact improve the implementation of the
directives, but so far to no avail.

John Tutte, the chief executive of developer
Redrow, launched an attack on EU directives themselves. He was reportedly
supported by the HBF, a story covered by The Telegraph. I asked the HBF
whether this represented a change in policy for the trade association, or
whether it reflected a pre-existing divergence of views in the organisation. I
am yet to receive a response.

Tutte complained that different species facing
extinction need protection during different periods of the business year - not
leaving enough time for his developers. "The UK has the largest
colonies of great crested newts in the whole of
Europe. We haven't got a shortage, there's no threat to great crested newts in
the UK, but it's European legislation," he is quoted as saying. The old
complaint - and others like it - was again heard in the corridors of power.

In the next instalment in this three-part series,
we look at the Brexit red herring – and where the confused claims about the
desirability and deregulation are really coming from.

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